Anfuso v. Smith

15 Pa. D. & C.3d 389, 1980 Pa. Dist. & Cnty. Dec. LEXIS 567
CourtPennsylvania Court of Common Pleas, Northampton County
DecidedApril 8, 1980
Docketno. 1979-C-12409
StatusPublished

This text of 15 Pa. D. & C.3d 389 (Anfuso v. Smith) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Northampton County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anfuso v. Smith, 15 Pa. D. & C.3d 389, 1980 Pa. Dist. & Cnty. Dec. LEXIS 567 (Pa. Super. Ct. 1980).

Opinion

FREEDBERG, J.,

— This matter is before the court on preliminary objections of defendants to plaintiffs’ complaint. The preliminary objections are in the nature of a demurrer to certain counts of the complaint as well as a motion to strike an allegation of recklessness.1

DEMURRER

In Sinn v. Burd, 486 Pa. 146, 149, 404 A. 2d 672 (1979), the applicable standards for ruling upon preliminary objections in the nature of a demurrer were set forth as follows:

“It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A. 2d 343 (1959); Byers v. Ward, 368 Pa. 416, 84 A. 2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A. 2d 532 (1964). Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained. . . .”

The averred facts in plaintiffs’ complaint are as follows:

[391]*391On August 27, 1979, shortly after noon, nine year old Nicole Marie Anfuso was fatally injured when struck by a vehicle operated by defendant, Lester E. Smith, as she was riding her bicycle in the street near her home. In addition to wrongful death and survival counts, the complaint contains a count seeking damages for Thomas D. Anfuso, the ten year old brother of Nicole (count 2), and for Barbara Anfuso, the dead child’s mother (count 4).

The count filed on behalf of Thomas alleges that at the time of the accident he was approximately 100 feet in front of the point of impact and observed the impact and the death of his sister. It is further averred that as a result of observing this he has become “unnerved and emotionally shattered, all of which has caused grievous mental suffering, depression, withdrawal and other serious psychological injuries.” The parents seek reimbursement for unitemized past and future medical expenses for treatment of the boy’s condition.

The count on behalf of the mother alleges that at or shortly prior to the time of the accident she had been observing her daughter from the inside of her home. It further alleges that upon hearing the impact of the vehicle with the child and the squeal of the tires, “Barbara Anfuso rushed to and witnessed the accident scene, as a result of which she became unnerved, emotionally shattered and hysterical, all of which has caused her serious mental suffering, anguish, depression and other psychological injuries.” She seeks reimbursement of unitemized past and future medical expenses for treatment of her condition. In their brief, plaintiffs acknowledge that the mother failed to actually see the impact between defendants’ vehicle and the child.

In Sinn v. Burd, supra, Justice Nix, joined by Justice Manderino, held that a mother has a valid [392]*392cause of action for negligently caused serious mental distress as a result of witnessing her minor daughter being struck and killed by an automobile even though the mother was outside the zone of danger.2 In so doing, the court rejected the zone of danger requirement of Niederman v. Brodsky, 436 Pa. 401, 261 A. 2d 84 (1970). Justice Nix’s opinion specifically reserved decision on the two issues raised by defendant’s demurrer in the instant case, i.e., whether a mother who does not visually observe the impact of the negligently operated vehicle with her child may recover and whether a plaintiff-bystander other than a parent may recover. See Sinn v. Burd, fns. 15 and 21.

In his opinion, Justice Nix stated that application of the traditional tort concept of foreseeability will reasonably circumscribe the extent of the tort-feasor’s liability in bystander recovery cases. Relying upon Dillon v. Legg, 68 Cal. 2d 728, 69 Cal.Rptr. 72, 441 P. 2d 912 (1968), Justice Nix identified three factors for use in determining whether injury was reasonably foreseeable:

1. Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it.

2. Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.

[393]*3933. Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

Applying the foreseeability analysis to the mother’s claim herein we note that criteria one and three clearly exist. Further, we believe that the requirement of “direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence” is satisfied by the pleading that the mother.saw her child immediately prior to the impact, heard the squeal of tires and the impact with the child, and immediately witnessed the accident scene. We reject the contention that visual perception of the impact is the only sensory observance sufficient to give rise to a cause of action. The facts as pleaded herein establish that the mother was a “percipient witness” to the impact. See Krouse v. Graham, 19 Cal.3rd 59, 137 Cal.Rptr, 863, 562 P. 2d 1022 (1977); Dziokonski v. Babineau, 380 N.E. 2d 1295 (Supreme Judicial Court of Mass. 1978); Landreth v. Reed, 570 S.W. 2d 486 (Texas. 1978). Contra, McGovern v. Piccolo, 33 Conn. Sup. 225, 372 A. 2d 989 (1976).3 Our Supreme Court having taken the [394]*394initial step permitting recovery in Sinn v. Burd, supra, we can find no basis in logic or fairness for rejecting the claim of one such as the mother plaintiff herein.

The sole issue raised by the demurrer to the claim on behalf of the victim’s brother is whether the holding of Sinn v. Burd should be extended to siblings. In Landreth v. Reed, supra, recovery by a sibling for emotional trauma resulting from negligent injury to her sister was permitted. See also Leong v. Takasaki, 55 Hawaii 398, 520 P. 2d 758 (1974), which permitted a claim by a step-grandchild; Keck v. Jackson, 122 Ariz. 114, 593 P. 2d 668 (1979), which permitted a close friend of the victim to recover; and Hopper v. U.S., 244 F. Supp. 314(D. Colo. 1965) wherein, assuming other requirements were met, a sister could recover for emotional trauma incident to observing her sister’s death.

Since young siblings are “closely related” biologically and emotionally, we hold that the sibling relationship herein is sufficient to satisfy the third prong of the foreseeability test adopted in Sinn v. Burd. Certainly, there is no acceptable rational basis to exclude this child from recovery under the expanded non-impact rule. See Tobin v. Grossman, 24 N.Y. 2d 609, 619, 301 N.Y. S. 2d 554, 561, 249 N.E. 2d 419 (1969). In his dissent in Sinn v. Burd, Justice Roberts noted that the central problem posed by the holding is that of “rationally limiting defendant’s liability.” 486 Pa. at 182, 404 A. 2d at 690.

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Related

Keck v. Jackson
593 P.2d 668 (Arizona Supreme Court, 1979)
Dillon v. Legg
441 P.2d 912 (California Supreme Court, 1968)
Leong Ex Rel. Petagno v. Takasaki
520 P.2d 758 (Hawaii Supreme Court, 1974)
Krouse v. Graham
562 P.2d 1022 (California Supreme Court, 1977)
Yania v. Bigan
155 A.2d 343 (Supreme Court of Pennsylvania, 1959)
Fugagli v. Camasi
229 A.2d 735 (Supreme Court of Pennsylvania, 1967)
Hopper v. United States
244 F. Supp. 314 (D. Colorado, 1965)
Byers v. Ward
84 A.2d 307 (Supreme Court of Pennsylvania, 1951)
Dziokonski v. Babineau
380 N.E.2d 1295 (Massachusetts Supreme Judicial Court, 1978)
LERAMAN v. Rudolph
198 A.2d 532 (Supreme Court of Pennsylvania, 1964)
Niederman v. Brodsky
261 A.2d 84 (Supreme Court of Pennsylvania, 1970)
Sullivan v. Wolson
396 A.2d 1230 (Superior Court of Pennsylvania, 1978)
Sinn v. Burd
404 A.2d 672 (Supreme Court of Pennsylvania, 1979)
Evans v. Philadelphia Transportation Co.
212 A.2d 440 (Supreme Court of Pennsylvania, 1965)
Landreth v. Reed
570 S.W.2d 486 (Court of Appeals of Texas, 1978)
McGovern v. Piccolo
372 A.2d 989 (Connecticut Superior Court, 1976)
Tobin v. Grossman
249 N.E.2d 419 (New York Court of Appeals, 1969)
Williams v. Philadelphia Transportation Co.
280 A.2d 612 (Superior Court of Pennsylvania, 1971)
Golden v. Sommers
56 F.R.D. 3 (M.D. Pennsylvania, 1972)

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Bluebook (online)
15 Pa. D. & C.3d 389, 1980 Pa. Dist. & Cnty. Dec. LEXIS 567, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anfuso-v-smith-pactcomplnortha-1980.